Defense loads and the law

[Palmach]

Originally Posted by netentity

I am not questioning what is legal. What I am playing devil's advocate is with civil liability. Can you possibly have a civil judgment against you for your actions? Criminal deals with what is legal. Civil deals with everything but what is legal. Does a judge and jury believe you were civilly wrong in your actions. A different measurement.

As I stated earlier, once you get your CCW in whatever state you have decided that you are open to civil liability. It is one of the pitfalls of concealed carry.

Bernie Goetz and OJ Simpson were vindicated of criminal wrong doing. So by that reasoning they should not have had double digit million dollar civil judgments against them.

If the second Grand Jury had not dismissed as a result of pending charges against the young men that attacked him, Bernie would indeed have been charged with assault and attempted murder based on his testimony and the testimony of those he shot.

OJ is a ridiculous example, as his has nothing to do with justifiable homicide that we are discussing here.

What I am advocating is conducting yourself in such a manner where you won't get served with a civil suit.

You will most likely be hit with a civil suit regardless of the caliber you carry, unless in a state with immunity. So, I really think this is a moot point.

The best way to defend a lawsuit is don't be a party to one just like the best way to win a gunfight is not to be there or for you movie buffs and in honor of the late Pat Morita, "The best way to block punch is no be there."

This is true, however, anyone who carries has already made the decision to endure possible arrest, prosecution and civil actions.

This is the one statement I agree with. Just because you were legally right, were not charged or the grand jury returns no bill does not mean you will not be served with a civil suit by the person whom you legally used lethal force against or that person's estate.

This is true as well, but the estate is not going to base the bringing of their case on what caliber you used to take the life of the BG.

If I read this thread correctly, you live in Florida where you have civil suit immunity for a justifable homicide. I live in a State where that applies only to your domicile. Your State protects you where you don't need to care what local LEOs carry. You only need to care if you fall within the statutory requirements of justifiable homicide within your State. Travel outside of your State then you better be concerned.

The bottom line is that even in Florida these statutes have not yet really been tested. I have said it before and repeat it again, the most important issue is never going to be what ammunition you used, but whether or not you followed the statutes related to the use of deadly force.

In the unfortunate event that any of us is required to use deadly force, I would hope that having been properly trained and having a good attorney we will prevail

A majority of the defensive trainers are active duty, reserve or retired law enforcement, military, or executive protection. How many of them have been on the business end of a lawsuit, coroner's inquest, other legal proceeding or regularly have been used as expert witnesses? Probably those in disagreement with my opinion.

You have not presented any opinions of those who you believe would counter my observation, so I am not sure that it matters what I say.

Jessie Ventura is a former Navy SEAL. He's better trained that most of us, certainly me. Would I ask him to defend me or be an expert witness if I was involved in a self defense shooting? No. Would I ask him on proper self defense techniques and his advice as a personal trainer, absolutely.

Jon Gutmacher who wrote what is considered the bible concerning Florida Gun law, which is used by numerous police training academies, as well as law enforcement agencies is my go to. He is a seasoned litigator, a staunch supporter of the 2nd Amendment, and a CWL holder.

Like most writers on this subject, his opinion is to do what is necessary to stop the attack, but makes it clear that eventhough we do the best of our ability to follow the letter of the law as it relates to deadly use of force, we shoud be prepared the possibility of arrest and prosecution.

In other words, as I have said before, you either have the right mindset of carry or you don't.

A majority of your self defense trainers deal with the mechanics of how to properly use your firearm, not in the legal aftermath of what to do after the shooting.

Same as above.

How about if I throw this scenario out.

Let's assume that OK did not have civil suit immunity for justifiable homicide in one's home. Those familar with the OK SDA know that the largest caliber you can legally carry under the authority of a CCW is .45.

You get involved in your OK home in a self defense shooting. You shoot the attacker with a .475 or a .50 caliber handgun. Do you believe that you would successfully come out of a civil suit unscathed? At the bare minimum you'd have to pay a retainer to an attorney.

Fortunately OK does have civil suit immunity for their castle doctrine.

You will have to pay an attorney a retainer for just about any shooting that takes place, you would not be wise to do otherwise.

I am not familiar with OK, and whether it is legal to have firearms in the home without a CCW, so it is difficult to answer the question.

Since it is legal to carry up to a .45, and since most people I know keep their carry weapon close by if not on their person while at home, I see no reason why a caliber above that which is legal shoulld be used.

In most of the cases I have seen where a civil suit if filed, it is never because the caliber of the fireram came into play, but because there was question as to whether there was sufficient evidence to warrant the use of deadly force.

To use Goetz, your own test case, one learns that he was considered to be reckless in his use of force. He was almost charged under a second Grand Jury, but it was dismissed when two of the men he shot came under additional felony charges of other crimes.

Are you aware that he attempted to shoot one of the suspects a second time after emptying the five rounds. Are you aware that in a statement, which he later recanted, but was testified to by others, he stated, "You don't look that bad, have another." These are the things which caused the ensuing civil suit against him. He is very lucky that the crime rate was as high as it was at the time, and that the people of N.Y. saw him as a victim. I was born and raised there and remember the case, as it was well before I moved to Florida. Today, he would be spending a very long time in prison.

[tattedupboy]

What's even more asinine than your original line of reasoning is the fact that you're defending it. If you were a prosecutor is this what you would use to prosecute people who are protecting themselves?

[kwo51]

Well if some one is shooting at me I'm going to duck and cover run like hell and shot over my shoulder. Large solid objects are your friends. Civil is a different animal and you can be sued just for being there.45's where good enough for our soulders it will do for us.No racey reddot super match just of the shelf ccw gun.Home defense is different a bazzoka will do if at home.

[tattedupboy]

Originally Posted by kwo51

Well if some one is shooting at me I'm going to duck and cover run like hell and shot over my shoulder. Large solid objects are your friends. Civil is a different animal and you can be sued just for being there.45's where good enough for our soulders it will do for us.No racey reddot super match just of the shelf ccw gun.Home defense is different a bazzoka will do if at home.

Based on netentity's argument, I'm not so sure. You could get sued for using a bazooka that killed him when a twelve gauge shotgun (or for that matter a .22 caliber pistol) would have just injured him enough to make him stop.

[netentity]

Originally Posted by tattedupboy

What's even more asinine than your original line of reasoning is the fact that you're defending it. If you were a prosecutor is this what you would use to prosecute people who are protecting themselves?

Our judicial system is what it is. I am not defending or endorsing it, I am just showing you the possibilities.

Based on netentity's argument, I'm not so sure. You could get sued for using a bazooka that killed him when a twelve gauge shotgun (or for that matter a .22 caliber pistol) would have just injured him enough to make him stop.

The civil suit would be at the bottom of your worries if you used a bazooka. If the NFA weapon (destructive device) was illegally obtained, you'd do 10 years in club fed plus a $250K fine. The State would get the leftovers for the arson and wreckless endangerment charges. If your neighbor's house caught fire, that would be another arson charge for each house that caught fire from use of the destructive device. You would not be immune from civil suits from your neighbors who had property damaged from discharging the destructive device. There actually is legal precedence of this happening.

[netentity]

Originally Posted by Palmach

As I stated earlier, once you get your CCW in whatever state you have decided that you are open to civil liability. It is one of the pitfalls of concealed carry.

You are also open for civil liability if you own a motor or operate a motor vehicle, simply own real estate or own a business.

OJ is a ridiculous example, as his has nothing to do with justifiable homicide that we are discussing here.

We are discussing criminal vs. civil suits which OJ is a poster child for. He was acquitted of murder, but yet has a wrongful death judgment against him.

You will most likely be hit with a civil suit regardless of the caliber you carry, unless in a state with immunity. So, I really think this is a moot point.

What you carry may affect the outcome of the civil suit. It is one of many factors in a civil suit.

This is true, however, anyone who carries has already made the decision to endure possible arrest, prosecution and civil actions.

This is true as well, but the estate is not going to base the bringing of their case on what caliber you used to take the life of the BG.

No what they are going to base their case if they can make a case based on the incident as a whole.

The bottom line is that even in Florida these statutes have not yet really been tested. I have said it before and repeat it again, the most important issue is never going to be what ammunition you used, but whether or not you followed the statutes related to the use of deadly force.

Actually they have been tested. John Lovell in a self defense shooting at a Subway in Plantation FL. This was after your stand your ground statute was made into law.

It may be a factor. It won't be the sole factor, but it may be one of many factors on whether or not you can defend against a civil judgment or if you end up in civil court to begin with.

You have not presented any opinions of those who you believe would counter my observation, so I am not sure that it matters what I say.

Evan Marshall of handgun stopping power fame has written an article on civil liability on his website with respect to intervention of a third person based on his experiences being a LEO. This article can very easily be applied to civil liability with respect to caliber choice because an innocent bystander heard a louder bang. Mas Ayoob has also stated a few times in his articles that he does not advocate the use of reloads for liability reasons.

Jon Gutmacher who wrote what is considered the bible concerning Florida Gun law, which is used by numerous police training academies, as well as law enforcement agencies is my go to. He is a seasoned litigator, a staunch supporter of the 2nd Amendment, and a CWL holder.

Like most writers on this subject, his opinion is to do what is necessary to stop the attack, but makes it clear that even though we do the best of our ability to follow the letter of the law as it relates to deadly use of force, we shoud be prepared the possibility of arrest and prosecution.

I never disagreed with that. I also have stated that to my students. I always as myself the following question, "What's the worst that can happen and what can I do to fix it now?" In dealing with the legal aftermath of a shooting, the best thing one can do is carry what is accepted or used by expert witnesses with respect to lethal force.

You will have to pay an attorney a retainer for just about any shooting that takes place, you would not be wise to do otherwise.

For the criminal portion. The civil suit will occur after the criminal case is over and done with. Why? Because the State did the plaintiff's job for them in gathering evidence for their case in constructing the criminal case.

I am not familiar with OK, and whether it is legal to have firearms in the home without a CCW, so it is difficult to answer the question.

The only States that require an ID, license or permit to possess or own are IL, MA, NJ and NY(C). All others it is legal for you to have firearms at your home or place of business. The OK .45 restriction is only for CCWs, not for firearms in your home.

Since it is legal to carry up to a .45, and since most people I know keep their carry weapon close by if not on their person while at home, I see no reason why a caliber above that which is legal shoulld be used.

Bingo! If you were to make that statement on the stand defending your own civil case you would have lost the farm if you were carrying anything larger than a .45 in a shooting at your home in OK. That same reasoning can be used in a civil case against you if you're carrying something other than what your local law enforcement agency carries. The same argument can be made in a civil action. "Your local police deparment authorizes carrying .380 ACP, .38 special, .357 magnum, .40 S&W and .45 ACP. Why were you carrying a .500 S&W for personal protection? Last time I checked, there were no grizzly bears in Florida. Why were you carrying something larger than what your local police department deems necessary for personal protection?"

To use Goetz, your own test case, one learns that he was considered to be reckless in his use of force. He was almost charged under a second Grand Jury, but it was dismissed when two of the men he shot came under additional felony charges of other crimes.

Are you aware that he attempted to shoot one of the suspects a second time after emptying the five rounds. Are you aware that in a statement, which he later recanted, but was testified to by others, he stated, "You don't look that bad, have another." These are the things which caused the ensuing civil suit against him. He is very lucky that the crime rate was as high as it was at the time, and that the people of N.Y. saw him as a victim. I was born and raised there and remember the case, as it was well before I moved to Florida. Today, he would be spending a very long time in prison.

Yes, malice was proven. If he was carrying a larger handgun or specially handloaded .38 special rounds that were loaded to the maximum safe pressure, he would have probably had a larger judgment against him. Malice is highly actionable in civil court.

[Palmach]

Originally Posted by netentity

You are also open for civil liability if you own a motor or operate a motor vehicle, simply own real estate or own a business.



We are discussing criminal vs. civil suits which OJ is a poster child for. He was acquitted of murder, but yet has a wrongful death judgment against him.



What you carry may affect the outcome of the civil suit. It is one of many factors in a civil suit.


No what they are going to base their case if they can make a case based on the incident as a whole.


Actually they have been tested. John Lovell in a self defense shooting at a Subway in Plantation FL. This was after your stand your ground statute was made into law.

It may be a factor. It won't be the sole factor, but it may be one of many factors on whether or not you can defend against a civil judgment or if you end up in civil court to begin with.



Evan Marshall of handgun stopping power fame has written an article on civil liability on his website with respect to intervention of a third person based on his experiences being a LEO. This article can very easily be applied to civil liability with respect to caliber choice because an innocent bystander heard a louder bang. Mas Ayoob has also stated a few times in his articles that he does not advocate the use of reloads for liability reasons.


I never disagreed with that. I also have stated that to my students. I always as myself the following question, "What's the worst that can happen and what can I do to fix it now?" In dealing with the legal aftermath of a shooting, the best thing one can do is carry what is accepted or used by expert witnesses with respect to lethal force.


For the criminal portion. The civil suit will occur after the criminal case is over and done with. Why? Because the State did the plaintiff's job for them in gathering evidence for their case in constructing the criminal case.


The only States that require an ID, license or permit to possess or own are IL, MA, NJ and NY(C). All others it is legal for you to have firearms at your home or place of business. The OK .45 restriction is only for CCWs, not for firearms in your home.


Bingo! If you were to make that statement on the stand defending your own civil case you would have lost the farm if you were carrying anything larger than a .45 in a shooting at your home in OK. That same reasoning can be used in a civil case against you if you're carrying something other than what your local law enforcement agency carries. The same argument can be made in a civil action. "Your local police deparment authorizes carrying .380 ACP, .38 special, .357 magnum, .40 S&W and .45 ACP. Why were you carrying a .500 S&W for personal protection? Last time I checked, there were no grizzly bears in Florida. Why were you carrying something larger than what your local police department deems necessary for personal protection?"


Yes, malice was proven. If he was carrying a larger handgun or specially handloaded .38 special rounds that were loaded to the maximum safe pressure, he would have probably had a larger judgment against him. Malice is highly actionable in civil court.

You seem to want to simply win the argument or discussion, so I will make it easy for you. You win. Feel better, OK, now we can move on.

Hope you enjoy being right.

[netentity]

Originally Posted by Palmach

You seem to want to simply win the argument or discussion, so I will make it easy for you. You win. Feel better, OK, now we can move on.

Hope you enjoy being right.

No one likes losing. I am also the type of person that you have to prove your point to win or have absolute authority over the subject (i.e. a judge in their courtroom). I also want to be proven wrong so I learn something I didn't know in the process. If you're going to counter me in an argument, debate or discussion; teach me something.

I have been told many times I'd make a good attorney. I just don't have the patience to go through the formal education for it. When debating or discussion the merits of civil litigation ultimately the people you need to convince of your argument are panel of twelve of your peers if you are a party in the suit. I have stated in many times; judges and juries are unpredictable.

[tattedupboy]

Originally Posted by netentity

Our judicial system is what it is. I am not defending or endorsing it, I am just showing you the possibilities.


The civil suit would be at the bottom of your worries if you used a bazooka. If the NFA weapon (destructive device) was illegally obtained, you'd do 10 years in club fed plus a $250K fine. The State would get the leftovers for the arson and wreckless endangerment charges. If your neighbor's house caught fire, that would be another arson charge for each house that caught fire from use of the destructive device. You would not be immune from civil suits from your neighbors who had property damaged from discharging the destructive device. There actually is legal precedence of this happening.

As for using the bazooka argument, I was just being sarcastic. Couldn't you tell? Don't get me wrong I'm all for using whatever gets the job done, but seriously, who uses a bazooka for home defense?

[lrlsaxd45]

I am told that you can use reloads if you do according to the manual of the load you use .per state attorney. When asked about your ammo say exactly what you use to reload, winchester,hornady,etc If you are very specific and detaied ,I am told that you will be alright.I also suggest that you read articles by Massad Ayoob, He is the leading expert witness in this topic and the one many attorneys and LEO hires for their defence.We can hear everything from those that aren't up to date, Seek advise from the state attorneys office, defence, and LEO, then you can make a fair decision.A excellent book to read is COMBAT HANGUN. Look in the statutes. Get a book by Attorney Jon H Gutmacher Florida Firearms Law, Use & Ownership.This is what I believe is the most important book an ccw can own other than the Holy Bible.